Hallelujah—a court that allowed punitives

FLORIDA LAW WEEKLY

VOLUME 50, NUMBER 25

CASES FROM THE WEEK OF JUNE 27, 2025

FINALLY, AN ORDER AFFIRMING A TRIAL COURT’S RULING TO ALLOW A PLAINTIFF TO ADD A CLAIM FOR PUNITIVE DAMAGES

Menada v. Arevalo, 50 Fla. L. Weekly D1314 (Fla. 3rd DCA June 18, 2025):

This wrongful death action arose from a fire at a multi-story Miami Beach hotel that resulted in the death of the plaintiff’s legally blind adult son. The defendant owned and operated the hotel, and the co-defendant was the sole shareholder when the fire occurred.

According to the operative complaint, the defendants engaged in intentional misconduct and gross negligence due to flagrant and persistent violations of applicable fire safety codes and orders issued by governing authorities.

The complaint traced the history of the violations all the way back to1998 when the hotel was cited for operating without fire sprinklers until the present. The complaint alleged that the defendant ignored numerous administrative orders requiring it to, (a) install fire sprinklers, and (b) implement a fire watch and warning system. The disregard of those orders resulted in millions of dollars of fines.

The complaint also alleged that against such an “astonishingly dangerous backdrop,” the defendants actually trained their security guards to acknowledge and then silence or disable the fire alarm system, causing late notice and ultimately causing the decedent’s death.

The plaintiff filed 2,000 pages of proffered evidence in support of the allegations, including filings and transcripts from the fire code administrative proceedings. There were orders warning of a critical safety issue, and orders calling the defendant out for unilaterally deciding to end fire watch procedures.

The proffer also contained numerous deposition transcripts, affidavits, and other documents, including the deposition of a security guard who was on duty when the fire occurred, who testified that they were advised to silence the alarm whenever it would go off.

The court acknowledged that other courts have taken different approaches in determining whether, and to what extent, a trial court may weigh evidence at the punitive damages pleading stage, but without ruling one way or the other, found it was of no consequence because even if the court had considered the counter-proffer as the trial judge had not, the plaintiff made a reasonable showing to provide the basis for recovery.

On this record, a court finally affirmed a trial judge’s ruling concluding that the plaintiff made a reasonable showing for providing a reasonable basis for recovery of punitive damages.

The concurring judge reminded us that punitive damages are reserved for the worst type of conduct, and that this case presented a perfect example of the kind of allegations that, if proven to be true, not only shocked the conscience, but were likely to merit punitive damages.

TRIAL COURT DID NOT ERR IN DENYING PLAINTIFF’S MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT ON THE ARGUMENT THAT THE VERDICT WAS CONTRARY TO THE MANIFEST WEIGHT OF THE EVIDENCE — ALTHOUGH DEFENSE EXPERT CONCEDED THERE MAY HAVE BEEN SOME TEMPORARY EXACERBATION OF THE PLAINTIFF’S PRE-EXISTING CONDITIONS, THE EXPERT’S TESTIMONY THAT THE ACCIDENT DID NOT CONTRIBUTE TO THE PLAINTIFF’S NECK AND BACK ISSUES BECAUSE THEY WERE CHRONIC AND DEGENERATIVE DID NOT SUPPORT THAT THE DEFENDANT’S NEGLIGENCE WAS A LEGAL CAUSE OF THE PLAINTIFF’S INJURIES

Wilczek v. Calafell, 50 Fla. L. Weekly D1331 (Fla. 3rd DCA June 18, 2025):

In this case of admitted liability, the defendant asserted that the injuries claimed by the plaintiff were preexisting and resulted from prior accidents that required surgeries and ongoing treatment to her back and neck.

Following trial, the jury returned a verdict for the defendant, finding that the negligence was not the legal cause of the loss, injury, or damage to the plaintiff.

The plaintiff moved for a new trial or a judgment notwithstanding the verdict, asserting that the defense expert had conceded that the plaintiff had sustained some injury as a result of the accident. The plaintiff argued the jury’s verdict was contrary to the manifest weight of the evidence.

The court reminded us that a motion for directed verdict or JNOV should be granted only if no view of the evidence could support a verdict for the non-moving party in the trial court, and the court determines that no reasonable jury could return a verdict for that party.

While the defendant’s expert doctor admitted that the plaintiff had sustained injuries to her lumbar and cervical regions in the accident, and that physical therapy and 8 to 12 weeks of treatment was appropriate, he also testified unconditionally that the neck and back issues were degenerative or preexisting to the accident, and that there was no evidence of trauma or acute or structural injury attributable to the accident.

The plaintiff also sought a new trial based on improper cross-examination and closing argument. The court reminded us that a contemporaneous objection to improper comments is necessary to preserve error unless the error can be said to be fundamental. Fundamental error occurs if the argument is so prejudicial as to be incapable of cure by rebuke or retraction, or if the error extinguishes a party’s right to a fair trial.

In this case, the plaintiff failed to object to the allegedly improper cross or to closing argument, and also failed to move for a mistrial.

The court found that the unobjected-to statement by defense counsel in closing that the plaintiff was prescribed “hundreds of pills monthly prior to the accident” did not rise to the level of fundamental error in a manner that would have denied the plaintiff a right to a fair trial.

NO ERROR IN ENTERING SUMMARY JUDGMENT FOR THE DEFENDANT WHERE RECORD WAS DEVOID OF EVIDENCE OF EITHER ACTUAL OR CONSTRUCTIVE NOTICE OF THE PRESENCE OF A TRANSITORY SUBSTANCE

Garcia v. Winn-Dixie, 50 Fla. L. Weekly D1333 (Fla. 3rd DCA June 18, 2025):

The plaintiff slipped and fell on an unknown substance at a Winn Dixie.

As the record was devoid of any evidence that Winn-Dixie had either actual or constructive knowledge of any transitory foreign substance on the floor of its store, summary judgment was proper.

The court also concluded that the trial court did not abuse its discretion in refusing to postpone the November 1, 2023 hearing on the defendant’s June 20, 2022, summary judgment motion. Because appellate courts should only disturb a ruling when the decision fails to satisfy the test of reasonableness, something that was not failed here, the court affirmed that ruling also.

TRIAL COURT ERRED BY ADMITTING A COST ESTIMATE FOR PLAINTIFF’S RADIO FREQUENCY ABLATION TREATMENT AND THE PHYSICIAN’S CORRESPONDING TESTIMONY INTO EVIDENCE, WHERE ESTIMATE WAS NOT PREPARED OR DISCLOSED UNTIL AFTER THE TRIAL BEGAN – EVEN THOUGH DEFENDANT WAS AWARE OF THE DOCTOR’S TREATMENT RECOMMENDATION, THE COST ESTIMATE AND TESTIMONY CONSTITUTED NEW UNDISCLOSED EVIDENCE. WHICH SUBJECTED THE DEFENDANT TO A TRIAL BY AMBUSH

Miller v. Conney, 50 Fla. L. Weekly D1347 (Fla. 1st DCA June 18, 2025):

In this automobile accident case, the trial court’s order scheduling a pretrial conference and jury trial required parties to file and serve no later than 30 days before the conference, a complete list of witnesses expected to testify at trial, with a concise description of the subject matter of their testimony and a schedule of all exhibits and documentary evidence that the attorney planned to offer during trial.

The order provided that no witness or document would be permitted if not disclosed as required by the order.

The plaintiff noted that one of the physicians would testify about the plaintiff’s injuries, treatment, causation, and permanency.

During the doctor’s deposition, she testified that she had determined that the plaintiff was a candidate for the ablation treatment at issue and that she was recommending a total of five of them. The doctor testified she did not know the cost of the procedure, however, and could only estimate the physician component.

On the second day of trial, the plaintiff’s counsel stated that he had just received the day before a cost estimate for the procedure plaintiff was scheduled to have the following week. It was prepared by an administrator for the practice where the testifying physician worked and provided that the recommended treatment would cost between $35,000 and $45,000.

The defense objected to the cost estimate, arguing it was untimely because it was not disclosed and constituted surprise.

The appellate court agreed. Finding Binger inapplicable because while the defendant was aware of the doctor’s recommendation for the procedures, the estimated cost of those procedures was new evidence. “The court rejected plaintiff’s argument that the cost of the procedure was not a new opinion as meritless.”

The court admonished that the trial court should not have allowed the plaintiff to continue discovery in the middle of trial after the trial court had ordered there would be no discovery that would be admitted after the pretrial cut-off. There was also no way for the defendant to cure the prejudice by having his expert testify about the reasonableness of the cost estimate, because it was the plaintiff’s burden to present evidence from which the jury could determine the amount of claimed future medical expenses with reasonable certainty.

Finding that the defendant was ambushed by this undisclosed testimony that the trial court allowed, the court affirmed part of the judgment but reversed the future medical expenses as discussed in the opinion.

COURT REVERSED SUMMARY JUDGMENT BECAUSE GENUINE DISPUTES OF MATERIAL FACT EXISTED AS TO WHOSE PROPERTY THE PLAINTIFF WAS ON WHEN HE FELL , AND WHETHER THE UNSTABLE GROUND AROUND THE HOLE WAS OPEN AND OBVIOUS 

Schramm v. Adams Holmes of Northwest Florida, 50 Fla. L. Weekly D1359 (Fla. 5th DCA June 20, 2025):

The plaintiff sued the defendant for premises liability and negligence after he fell into a hole near the property line between his home and the defendant’s property where the defendant was constructing a home. Plaintiff alleged that the defendant’s negligent construction on its property caused the formation and subsequent expansion of the hole, which then caused his injuries.

The evidence showed that the defendant had installed a silt fence on its property and began the installation of underground plumbing, which caused a hole to form on the property. A month prior to the fall, the plaintiff notified the defendant that the fence had fallen and of the increased runoff, but the defendant did not fix it.

As the hole expanded, it began to approach the plaintiff’s property. To ensure no one on his property fell in the hole, the plaintiff planned to mark the outside perimeter with orange flags. Before he reached the visible portion of the hole as he was doing that, however, the grassy area caved in causing him to fall.

The defendant successfully moved for summary judgment. He argued he had no duty because the plaintiff was on his own property. Alternatively, he argued that if the plaintiff were on the defendant’s property, he was an undiscovered trespasser. Finally, defendant asserted that irrespective of the location of the fall, the hole was open and obvious.

In reversing, the trial judge said he believed that the plaintiff was an undiscovered trespasser, which the court said was impossible, because such a person is one who enters property without an invitation.

The court also found that there could still be a duty owed even if the fall occurred on the plaintiff’s property due to the expanding hole caused by the defendant.

Those issues, along with whether there was an open and obvious danger, were genuinely disputed issues of material fact requiring reversal of summary judgment.